Law for EC Appointments: It’s needed more than ever now

With the national elections about two years away, the framing of a specific law as mandated by the constitution for appointments of election commissioners is back to the fore against the backdrop of widespread mistrust in the Election Commission and an alarming apathy among voters.

The state has barely four months to appoint new election commissioners as the five-year tenure of the incumbent chief election commissioner and four other commissioners ends on February 14.

Though over 49 years have passed since the constitution prescribed a specific law for appointing CEC and ECs, successive governments chose not to enact one. Most of the South Asian countries, however, have similar laws in place.

In the absence of the law, the appointments of election commissioners with no specific criteria defined regarding their qualifications or what will lead to the disqualification often triggered widespread controversies.

The current Election Commission has drawn flak from many opposition parties, election watchdogs, and civil society members over holding of the 2018 national election. It has also come under fire from different quarters for low voter turnout in local body elections, by-polls and many candidates getting elected unopposed.

Election experts blamed the EC for the failure to ensure free and impartial elections, which has caused people and many political parties to lose interest in polls.

The use of EVM (electronic voting machine) in elections by the EC has also come under scrutiny with some claiming that the machine was introduced to enable polls irregularities.

The current commissioners assumed office on February 15, 2017. As there is no specific law, the president had formed a search committee earlier that year for appointing the CEC and other commissioners.

Since 1972, most of the governments constituted the EC by appointing persons of their choice.

Article 118 (1) of the constitution says, "There shall be an Election Commission for Bangladesh consisting of [the chief election commissioner and not more than four election commissioners] and the appointment of the chief election commissioner and other election commissioners shall, subject to the provisions of any law made on that behalf, be made by the president."

Noted jurist Shahdeen Malik yesterday told The Daily Star, "The formation of a law for an Election Commission is now urgent than any other time for the interest of holding free and fair elections."

He said, "If a law is formulated, the government cannot appoint the chief election commissioner and other election commissioners of its own choice because it is the law which will determine the qualification of the candidates for the posts."

He also said once the law is enacted, the government will have no control in the formation of selection committees. "If the EC is constituted through formulating a specific law under the constitution, it will be more impartial than the existing commission led by the chief election commissioner [KM Nurul Huda]."

He also said, "The present EC has succeeded in making the voters reluctant to go to the polling stations and also in making the candidates disinterested to contest the elections...  It has turned the elections of the country into a farce."

Malik then pointed out that the present search committee for recommending the names of EC has "no legal basis.'

Referring to the appointment of ECs in neighbouring countries, Malik earlier told The Daily Star, "Most countries in South Asia have enacted laws and we don't have to reinvent the wheel. The current practice of the so-called ad-hoc search committee is nothing but a sham."

BNP Secretary General Mirza Fakhrul Islam Alamgir on September 13 said their party wanted a permanent solution to the issue over the formation of an Election Commission. "But before that, we want a neutral government under which a neutral Election Commission will be formed."

On September 15, Jatiya Party Chairman GM Quader demanded enactment of a law in line with the constitution to have the "permanent solution".

Awami League General Secretary and Road Transport and Bridges Minister Obaidul Quader on September 18 said the ministry concerned was working for the formation of the EC as per the constitution.

He alleged that the BNP came up with a new conspiracy ahead of the formation of a new commission.

Contacted, Election Commissioner Rafiqul Islam said, "The constitution mentions that a specific law has to be formulated. It is obligatory. But no government has done that so far. It is not our duty to make a law. Personally, I feel if the government seeks EC's support, we should provide it."

Law Minister Anisul Huq recently told The Daily Star that the present government is considering with utmost importance the issue regarding the formulation of a law for appointing election commissioners.

He, however, did not say exactly when the government would take steps to formulate the law or rules.

Regarding the current appointment procedure of the EC, the law minister said, "The government is functioning under the constitutional provisions and there is no violation of the provisions."

PAST INITIATIVE

Election Commission sources said that the then EC prepared a draft law in 2007-2008 and submitted it to the caretaker government. And the then government advised the EC to submit the draft to the new government.

After further review, another draft was prepared in 2011.

The Daily Star obtained a copy of the draft "Chief Election Commissioner and Election Commissioner (Appointment Procedure) Act, 2012," prepared in November 2011.

The draft proposes constituting the EC with the CEC and four election commissioners. One of the commissioners will be a woman. It suggested that the president should appoint commissioners who are skilled, honest, righteous and neutral.

APATHY TO ELECTIONS

In an ominous sign for democracy, the practice that candidates get elected unopposed has gripped the recent parliamentary by-polls as well as local body elections. These elections also witnessed low turnouts.

Even a few years ago, these elections would be held amid much enthusiasm and fanfare irrespective of how the  national polls had gone, experts said.

For example, last week, 160 union parishads went to elections and of them 43 chairman candidates were elected uncontested, which means around 29 percent chairmen were elected without a single vote being cast.

In elections of 456 upazilas, held between March and June 2019, 94 chairman candidates were elected unopposed.

Of the 94, at least 93 were AL candidates.

The Sylhet-3 by-polls, which were held on September 4, saw only 34 percent voter turnout. The picture was grimmer in the Dhaka-10 by-polls on March 21 last year, which saw a turnout of only around five percent.

Local government and election expert Professor Tofail Ahmed said, "The country is witnessing a suffocating period. The voting system and culture has been damaged. Political democracy is already demolished. Politics is a profitable business now so there is no place for democracy there."

Election watchdogs and civil society members have criticised the current EC over the holding of the 2018 national election tainted with alleged irregularities including ballot stuffing.

At a party meeting in February, Workers Party of Bangladesh, a component of the ruling alliance, alleged that the government's interference in the electoral system is now a public knowledge and people have lost confidence in the system.

Forty-two eminent citizens, in two separate letters on December 14, 2020 and January 17 this year, urged the president to constitute Supreme Judicial Council to probe allegations of corruption and misconduct by the EC.